HLA Hart and Modern Legal Positivism H.L.A. Hart is one of the important names in the history of legal theories. In our class reading, Hart talked about past strict positivists and changed legal positivist theory for modern thinking and experience. Hart also talked about Austin and Bentham, who were two important figures in Utilitarianism. Hart agreed with some of their thought but disagreed with other aspects of their thought. Because of his examination, and sometimes disagreement and changes, of Positivism and Utilitarianism, H.L.A. Hart is famous for a new way of thinking about both schools of thought.

The Key Concept from the Text and an Example

The key concept from the text is a more modern way of looking at law and morality because Hart is a legal positivist but he is a modern legal positivist. Hart believes that the "point of intersection between law and morals or that what is and what ought to be are somehow indissolubly fused or inseparable though the positivists denied it." For example, Hart says that people are not giant land crabs with shells that cannot be penetrated and who can somehow get their food from the air and not be hurt by each other. Until people become like those giant land crabs, there must be laws that are against violence and that set minimum property rights. Hart believes that those laws "overlap" with basic moral principles against murder, violence and theft and that all legal systems "coincide" with morality at such vital points.

Hart wrote several important works, including "Positivism and the Separation of Law and Morals" for the Harvard Law Review. In "Positivism and the Separation of Law and Morals," Hart looked at old and new Positivism and the Utilitarian beliefs of Austin and Bentham. An earlier legal positivist believed that it is only a coincidence if legal rights and moral rights are connected. Legal rights do not depend on morality or "natural law" at all for a legal positivist. One example that Hart uses is "the core...

In Hart's example, a "core" is the thing that a law is meant to cover but a "penumbra" covers things that are not meant to be covered by that law. If a law says that vehicles cannot be in a park, a judge who goes by legal positivism would look up the meaning of "vehicle" and stick to that definition. The judge would not try to figure out the "penumbra" covered by that law and try to use the law for a bicycle, roller skates or toy cars because those are not defined as "vehicles" in the statute. Hart disagrees with past strict positivists because he believes that modern thinkers must see that there is a "point of intersection between law and morals or that what is and what ought to be are somehow indissolubly fused or inseparable though the positivists denied it."
b. The Point-of-View of Both Austin and Bentham and Examples

Austin and Bentham were both Utilitarians. They believed that there is not really a connection between the law that is and the law that ought to be. In other words, Austin and Bentham believed that it is only a coincidence if legal rights and moral rights are connected. Because they were Utilitarians, Austin and Bentham believed in a social philosophy of liberalism in law and government, reform, and control of power because even reformers might corrupt the law. They also believed that: a rule can violate morality but still be a law; a rule can obey morality but not be a rule of law. An example that Hart gave is the rights of a master over his slaves: even though the master's rights violate morality, his rights are still a rule of law; also, someone could violate the law of a master's rights by illegally freeing a slave but that violation would obey moral law. Finally, they believed that: a study of the vocabulary of law is vital to understanding law; and that law is a command.

Austin said that the…